One word further must be added upon a feature of the oral argument made by the accused in this court, and also vehemently urged by his attorney in his brief filed in this court. The accused and his attorney have used extreme language in their attempts to cast reflections both upon Mr. Wolfe and Judge Lauder on account of the interest manifested by them in procuring the institution and prosecution of this proceeding in this court. The motives of Mr. Wolfe and Judge Lauder are characterized as sinister and malevolent, and they are directly charged with malicious and revengeful motives in pressing this matter to a hearing in this court. We desire to say that this charge is not sustained by the evidence in any degree whatever. The nature of the acts committed, and the direct consequence which resulted from the same, could not be overlooked either by the presiding judge or by the attorney who was also a victim of the fraud. Judge Lauder would have been fully justified in so doing if he had personally directed a member of the bar of his court to file an accusation in the district court against Mr. Freerks, and we think it was an act of delicacy on his part in directing the informants to file the accusation in another court than that over which he presided. Under such circumstances this court can have no sympathy with the unprofessional attempt made in behalf of the accused to besmirch the presiding judge of the district court. Nevertheless, as a matter of practice, we are clear that the informants, in filing the accusation in this court, acquired no additional right or authority to do so from the order directing it, which was made by the lower court. The accusation here, therefore, stands upon the individual action and initiative of the attorneys who filed the same in this court. In filing the accusation the attorneys have acted in accordance with their professional duty. But we desire to say, in the interests of a sound practice, that accusations of this kind appear in this court with unwelcome frequency. While this court has undoubted jurisdiction to discipline members of the bar, the fact remains that it should not, unless in exceptional cases, be called upon to sit as a nisi prius court in this class of cases. policy of the statute clearly authorizes a different practice. See especially section 437, Rev. Codes 1899. That section, to be fully effectual, may require amendment, but while it stands we can entertain no doubt that it is the duty of district courts to shoulder their share of the responsibility of passing upon this class of cases. The grounds of the charges in this case occurred in the district. court, and came to the knowledge of that court; and hence, under section 434, Id., that court had a right to require the accusation to be filed in that court, and such a course, in our opinion, would be much better practice than that pursued.

The

It remains only to announce the conclusions of the court. There are some circumstances of mitigation in this case, chief among which we place the fact that the accused in all that he did apparently acted in the honest belief that he was legally entitled to receive the

amount which he actually obtained from the county treasury. In other words, we credit Mr. Freerks with entertaining the honest belief (whether well grounded or not we do not attempt to decide) that the tax certificate which he owned represented a claim against the county which was legally enforceable. We consider this fact in mitigation, and therefore shall not inflict the full punishment of disbarment, which might legally be imposed in this case under the evidence. We have concluded to direct the suspension of Martin C. Freerks from the practice of law in all courts of this state for an indefinite period of time, which period, however, is limited as follows: The accused or his attorney will be permitted on the first day of the second regular term of this court which convenes in the year 1903 to move in this court for the vacation of the order directing his suspension from practice as an attorney at law. Upon the presentation of such motion this court will direct the vacation of such order upon terms and conditions following: If it shall, when said motion is made, satisfactorily appear that within 30 days after the date of the order of suspension Mr. Freerks paid into the hands of the treasurer of Richland county said sum of $66.30, which we hold was fraudulently obtained by him, and if at that time no verified complaint has been filed in this court charging the accused with violating the terms of the order of suspension, we shall, upon such showing, vacate such order. The clerk of this court is directed to enter an order in substantial conformity to this opinion.

All the judges concur.

(90 N. W. Rep. 265.)

STATE ex rel A. W. CLYDE 7's. W. S. LAUDER.

Prosecuting Attorneys-Refusal to Act-Compensation of SubstituteDeduction from Prosecutor's Salary Propriety-Review by Certiorari.

The

W. Q., who was the defendant in a certain criminal action instituted in McIntosh county, after a preliminary examination, was held to answer in the district court for a public offense. state's attorney of said county, not desiring to prosecute the defendant further, filed his reasons therefor with the clerk of the district court, pursuant to the provisions of section 7984. Rev. Codes 1899. The district court overruled said reasons, and by an order entered in the minutes declared that it did not deem the state's attorney a proper person to prosecute the criminal action in question, and by a subsequent order entered in the minutes appointed one L., an attorney at law, to act as prosecutor in said criminal action. By a still later order, reduced to writing and filed with the clerk of the district court after court had adjourned for the term the presiding judge directed the auditor of said county to deduct from the salary of the state's attorney the sum of $100, which amount

was the sum fixed by said order as the compensation of L. for prosecuting the action. In said last-mentioned order the grounds for deposing the state's attorney and for appointing L. to prosecute are stated as follows: "And said attorney in open court stated that in his opinion the said defendant should not be prosecuted, and refused to proceed with the prosecution of said cause," etc. Held, conceding, for the purposes of this proceeding only, that the above-quoted grounds of the order made by the trial court, requiring the county auditor to deduct $100 from the salary of the state's attorney, are true, and conceding that the state's attorney willfully refused to file an information and prosecute said criminal action, that such order was made without authority of law, and the same is null and void. There was a state's attorney for McIntosh county, and he was not absent from court, nor was he "unable" by reason of bodily or mental disability, to "perform the duties of his office." Therefore none of the statutory conditions authorizing an order making deductions from the salary of the state's attorney existed in this case. See section 1986, Rev. Codes. Held, further, that a refusal to prosecute, or willful misconduct in office, will not justify any such order in a case where the state's attorney is present in court and able to perform his official duty. Held, further, that the order depleting the salary of the state's attorney is not an appealable order, and that for the injury necessarily resulting from such an order the law in regular course does not afford a remedy which is plain, speedy and adequate. Hence the writ of certiorari is the proper remedy to bring up such order for review.

Certiorari by the state of North Dakota, on the relation of A. W. Clyde against Hon. W. S. Lauder, judge of the Fourth judicial district, and Paul Kretschmar, clerk of the district court for McIntosh county, to review an order of the court deducting from relator's salary as state's attorney the compensation to another attorney appointed to prosecute a criminal action. Reversed.

Morrill & Engerud, for plaintiff.

The district judge has power to appoint pro tempore a state's attorney when the state's attorney is unable to perform his duties or is absent, and when there is no state's attorney in the county. Section 1896, Revised Codes. The state's attorney was present and actually performing his duties. The statute imposes upon him the duty of examining the facts and determining whether the defendant should be informed against. His duties are quasi judicial in this respect. If the state's attorney in bad faith refuses to act there is ample remedy by contempt and proceedings for removal from office and the court can call a grand jury or the people of the county can petition for a grand jury. Sections 7986 and 1985, Rev. Codes. Neither the letter nor the spirit of the law sanctions the construction of the word "inability" as equivalent to the word "refusal." Certiorari is the proper remedy in this case. State v. Ross, 4 N. D. 319. 331-333.

M. A. Hildreth and Nels Larson, for defendant.

The duties of the state's attorney as a public prosecutor are de

fined by the Code, § 1979, Rev. Codes. When the state's attorney is absent or unable to attend to his duties and when necessary the court may appoint by an order to be entered in the minutes of the court, a suitable person as attorney to perform for the time being the duties required by law of the state's attorney. Section 1986, Rev. Codes. Relator refuses to prosecute one William Quatier assigning as his reason therefor that the facts did not show defendant guilty of a public offense but that he believed defendant to be the victim of a high-handed outrage which deserved stern rebuke. Upon this showing relator was disqualified and unable to attend to his duties within the meaning of § 1986, Rev. Codes. Korth v. State, 65 N. W. Rep. 792.

WALLIN, C. J. In this proceeding a writ of certiorari issued out of this court upon the petition of the relator, A. W. Clyde, who at all times in question was the duly elected and qualified state's attorney of the county of McIntosh, in this state. The petition for

the writ is as follows:

"A. W. Clyde, being first duly sworn, states on oath that he is, and for more than one year last past has been, the duly elected, qualified, and acting state's attorney, in and for McIntosh county, state of North Dakota. That Hon. W. S. Lauder is, and for more than one year last past, has been, the duly elected, qualified, and acting judge of the Fourth judicial district of the state of North Dakota. That Paul Kretschmar, during said time, has been, and is now, the duly elected clerk of the district court of McIntosh county, North Dakota. That, previous to the convening of the last regular term of the district court in and for McIntosh county, a criminal prosecution was commenced in justice's court, before John J. Doyle, a justice of the peace of McIntosh county, on the complaint of one Ed. Lunn, against one William Quatier, as defendant, charging said Quatier with the crime of resisting an officer while in the discharge of his official duties. That said prosecution was instituted without the approval or consent of this affiant, and such proceedings were had in said action before said justice that said William Quatier was bound over to appear before the district court, at the next regular term, to be held in Ashley, McIntosh county, on the 14th day of May, 1901, to answer to said charge. That on the first day of the regular May term, 1901, of said district court at Ashley, McIntosh county, North Dakota, to-wit, May 14, 1901, this affiant, as state's attorney of said county, appeared before said court, and filed therein a statement, in writing, of his reasons for not filing an information against said William Quatier, and moved the court for leave to dismiss said prosecution. That a copy of said statement is hereto annexed, marked "Exhibit A," and made a part hereof, and the statements therein are all true, to the best of affiant's knowledge, information, and belief. That afterwards, on the same day, said W. S. Lauder, as judge of said court, denied affiant's

motion to dismiss said prosecution, and directed that information be filed against said Quatier, and thereupon said affiant, in open court, stated and announced that he would file such information as soon as he could prepare the same, but would ask the complaining witness to verify the same, to which statement of the affiant he, the said W. S. Lauder, as judge of said court, replied, by an oral statement, which he then and there made, in words following, to-wit: 'It will not be necessary, Mr. Clyde, for I do not consider you a proper person to have charge of this prosecution, and have decided to appoint another attorney to file the information and have charge. of the prosecution,' or in other words in the same import; that later in said term, to-wit, on May 16, 1901, said W. S. Lauder, as presiding judge, in open court, orally appointed one Nels Larsen, Esq. of La Moure county, North Dakota, to file information and conduct the prosecution against said Quatier, but did not fix the amount of compensation for said services, or make any order or announcement as to the payment thereof, or the retention of the same, or any part thereof, out of the salary of affiant as state's attorney, and did not make or file, or cause to be entered in the minutes of the court, any formal order appointing said Larsen until the evening of May 17, 1901, after the final adjournment of said court for said term, as affiant is informed and believes; when he made and filed with said clerk, and caused to be entered on the minutes of said court, an order, a true copy of which is hereto attached, marked 'Exhibit B,' and is made part hereof for reference. That the recital in said order to the effect that affiant had refused to prosecute said criminal action against William Quatier is not true, but, on the contrary, the facts are as hereinbefore stated in this affidavit. That, pursuant to the directions and order of said Judge Lauder, said order (Exhibit B) was served upon the board of county commissioners and auditor of said McIntosh county; and in obedience thereto said auditor refuses to pay affiant his lawful salary in full, but withholds from him the sums payable to said Larsen by the terms of said order. That said order of the said district court was and is illegal and void, and in excess of the jurisdiction vested in said court, or the judge thereof, in this: that it falsely recites that affiant refused to prosecute said criminal action; and further directs that part of affiant's salary shall be withheld from him and paid to said Nels Larsen, although this affiant was then and there the duly elected, qualified, and acting state's attorney of McIntosh county, and was then and there, at all times, present, able, qualified, and willing to act in said matter; and in recommending the dismissal of said prosecution was acting in the due and lawful performance of his duties as such state's attorney. Affiant therefore prays that the honorable, the supreme court of the state of North Dakota, cause a writ of certiorari to be issued out of said court to the judge and clerk of the district court in and for McIntosh county, requiring that all the records, papers, and facts in reference to the